The Biden Administration has made renewed commitments to strengthen relationships between the federal government and Tribes, including through agreements with Tribes to collaborate in the co-stewardship of our nation’s natural resources. While these policy commitments are important and significant steps in recognizing the critical role that Native communities can play in managing public lands and resources, Tribes should also consider working with their representatives in Congress on legislation that formalizes certain co-stewardship relationships and responsibilities or that authorizes co-management of certain lands and resources.
Biden Administration Co-Stewardship Initiatives
At the 2021 White House Tribal Nations Summit, the Secretaries of the Interior and Agriculture signed a Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters (S.O. 3403) that, in part, commits the Departments of the Interior (DOI) and Agriculture (USDA) to collaborate with Tribes in the co-stewardship of federal lands, waters, and wildlife. The U.S. Department of Commerce joined S.O. 3403 in November 2022. Through S.O. 3403, the Departments commit “to ensure that [USDA, DOI, and Commerce] . . . are managing Federal lands and waters in a manner that seeks to protect the treaty, religious, subsistence, and cultural interests of federally recognized Indian Tribes . . . ; that such management is consistent with the nation-to-nation relationship between the United States and federally recognized Indian Tribes; and, that such management fulfills the United States’ unique trust obligation to federally recognized Indian Tribes and their citizens.”
When viewed holistically, S.O. 3403 includes a number of principles that are intended to strengthen and better reflect the Departments’ relationship with, and responsibilities to, Indian Tribes. Notably, among its principles of implementation, S.O. 3403 directs that the Departments: “will collaborate with Indian Tribes to ensure that Tribal governments play an integral role in decision making related to the management of Federal lands and waters through consultation, capacity building, and other means[,]” “will engage affected Indian Tribes in meaningful consultation at the earliest phases of planning and decision-making relating to the management of Federal lands to ensure that Tribes can shape the direction of management[, including] agencies giving due consideration to Tribal recommendations on public lands management[,]” and “will consider Tribal expertise and/or Indigenous Knowledge as part of Federal decision making relating to Federal lands, particularly concerning management of resources subject to reserved Tribal treaty rights and subsistence uses.”
Importantly, as one component of how the Departments will fulfill their obligations to federally recognized Indian Tribes, S.O. 3403 directs the relevant federal agencies to “[m]ake agreements with Indian Tribes to collaborate in the co-stewardship of Federal lands and waters under the Departments’ jurisdiction, including for wildlife and its habitat; [and] [i]dentify and support Tribal opportunities to consolidate Tribal homelands and empower Tribal stewardship of those resources[.]”
S.O. 3403 also sets forth standards for how the Departments are to work with Indian Tribes on issues related to the stewardship of federal lands and waters, and requires the Departments to “endeavor to engage in co-stewardship where Federal lands or waters, including wildlife and its habitat, are located within or adjacent to a federally recognized Indian Tribe’s reservation, where federally recognized Indian Tribes have subsistence or other rights or interests in non-adjacent Federal lands or waters, or where requested by a federally recognized Indian Tribe.” In particular, the Departments are directed to:
Promote the use of collaborative agreements and/or provisions in land management plans consistent with the Department’s obligations under existing law;
Develop and implement, whenever possible, employee performance review standards that evaluate progress toward meeting the objectives and goals of this Order, including success toward developing new collaborative stewardship agreements and enhancing existing ones;
Coordinate and cooperate on co-stewardship efforts and initiatives between the Departments;
Use agreements as a tool to foster cooperation on protection of treaty, subsistence, and religious rights consistent with consensual policy-making referenced in Executive Order 13175; and
Evaluate and update Departmental Manuals, handbooks, or other guidance documents for consistency with this Order.
DOI and USDA have since released reports and guidance on their implementation of S.O. 3403, and the Bureau of Land Management, National Park Service (NPS), U.S. Fish and Wildlife Service, and Bureau of Indian Affairs have each released new guidance that sets forth how each agency will facilitate and support agreements with Tribes to collaborate in the co-stewardship of federal lands and waters.
On balance, the Biden Administration’s initiatives provide needed support and new directives for the relevant federal agencies to engage with Indian Tribes on co-stewardship of federal lands and resources. For example, the USDA reported that it had entered into 11 new co-stewardship agreements with another 60 in development at the end of 2022. However, for more durable or enhanced roles and responsibilities, Tribes may wish to consider working with their representatives in Congress to pursue co-management opportunities as well.
Co-Stewardship v. Co-Management
The distinction between the two related concepts of “co-stewardship” and “co-management” is important. The term “co-stewardship” can encompass a wide range of working relationships related to management decisions, including co-management, collaborative or cooperative management, and Tribally led stewardship. Co-stewardship can be implemented through cooperative agreements, MOUs, self-governance agreements, and other means. In contrast, “co-management” provides for the sharing in the legal authority to manage the resource.
For example, there are currently four National Park units that share some level of “co-management” authority with Tribes: (1) Canyon de Chelly National Monument, which is located within the boundaries of the Navajo Nation in Arizona; (2) Glacier Bay National Park and Preserve in Southeast Alaska; (3) Grand Portage National Monument, which is located within the boundaries of the Grand Portage Indian Reservation in northern Minnesota; and (4) Big Cypress National Preserve in Florida. In all four cases, Tribal co-management authority derives at least in part from federal legislation—e.g., the enabling legislation for Canyon de Chelly National Monument preserves some land and mineral rights of the Navajo Nation as well as a preferential right to provide some visitor services. In March 2022, NPS reported that the development of a co-management plan would begin in FY 2023, with NPS looking to the success at Uluru-Kata Tjuta National Park in Australia as a model.
The current Administration’s commitment to engage in co-stewardship provides new opportunities for Tribes seeking to increase their involvement in federal decision-making related to their traditional lands and resources through co-stewardship initiatives. However, because these directives are provided in a Secretarial Order, their durability and implementation will be subject to the priorities of the President and current and future Executive Branch officials. To solidify and build upon these initiatives, Indian Tribes may consider pursuing additional legislative or regulatory measures necessary to ensure a greater degree of legal authority and management responsibility with respect their traditional lands and resources.